General Terms and Conditions

§ 1 Application of General Terms and Conditions

These General Terms and Conditions (hereinafter: the “Terms and Conditions”) apply to all performance and pre-contractual obligations of BGA GmbH, Christaweg 42, 79114 Freiburg, Germany (hereinafter: “BGA”) in relation to the customer, unless otherwise agreed. Other contractual terms will not become part of this Agreement even if BGA fails to expressly object to such terms.
Although no specific reference is made to them upon the conclusion of similar agreements, the present Terms and Conditions of BGA apply exclusively in the version available at at the time the customer makes its declaration, unless the contracting parties agree otherwise in writing.
These Terms and Conditions do not apply if the customer is a consumer in the sense of § 13, German Civil Code [BGB].

§ 2 Conclusion of a Contract

Offers made by BGA are subject to change and non-binding unless an offer is designated in writing as being binding. An offer only becomes legally binding by means of a contract signed by both sides or a written order confirmation issued by BGA, or in that BGA commences with the performance in accordance with the contract. BGA may require written confirmation of contractual declarations made verbally by the customer.

§ 3 Performance by BGA

Performance by BGA is specified in the relevant individual contract, the order confirmation, the offer and/or the specification of performance issued by BGA (“Contractual Documents”). Other requirements only become part of the contract if they are agreed in writing by the contracting parties or if BGA has confirmed them in writing. Subsequent modifications of the performance are subject to a written agreement or to written confirmation issued by BGA.
Customer has verified prior to conclusion of the contract whether the performance to be provided by BGA suits the customer’s wishes and needs. The customer is aware of the material features and qualities of the performance to be provided by BGA.
Descriptions and presentations of the performance to be provided by BGA are specifications of performance, but do not constitute guarantees. A guarantee requires a written declaration issued by the management of BGA.
If the performance to be provided by BGA comprises the development or provision of software, BGA shall provide such software in executable form. Source code and similarly editable source data will not be provided unless otherwise agreed in writing by the contracting parties.
BGA shall provide work results (§ 10(1)) available solely in their final version. Early drafts, interim stages, working documents, records, sketches and production data will not be provided.

§ 4 Customer’s Cooperation

Customer shall support BGA in a comprehensive, competent and timely manner in the provision of performance. Customer shall release qualified staff members from their duties to a reasonable extent, for the cooperation with BGA. Customer shall provide any necessary materials in good time, shall provide BGA the information required for performance and shall grant BGA the necessary access to premises, hardware and software as well as telecommunications facilities.
Customer is responsible for the accuracy and completeness of all requirements it sets and of all information and contents it makes available, and for their compliance with the pertinent statutory provisions (e.g. of competition law, copyright and trademark law and the relevant provisions on consumer protection). BGA assumes no liability whatsoever for infringements of rights arising from requirements, information or contents of the customer. Customer shall indemnify BGA against any claims made by third parties and shall compensate BGA for any damage or expenditure it incurs due to a breach of the obligation under this
§ 4(2) by the customer, unless the latter proves that it was not responsible for the breach.
Customer shall name a contact person who is available to BGA for necessary information and who takes or initiates decisions without undue delay. The contact person has to make his/her working capacity reasonably available for the cooperation with BGA. Customer shall appoint a deputy for the contact person.
Customer shall take reasonable precautions in case contractual items do not function properly in whole or in part (e.g. through data back-ups, malfunction diagnosis, emergency plans).
Customer shall provide reasonable support to BGA as regards the rectification of defects. In particular, the customer shall provide timely notification of any defects arising, together with a description of the problem as precise as possible as well as information, documents and data useful for rectification of the defect.

§ 5 Remuneration

Customer shall pay to BGA the remuneration specified in the Contractual Documents. If the Contractual Documents do not regulate the remuneration, the customer shall remunerate BGA according to expenditure. The price list of BGA as in force at the time of conclusion of the contract shall apply in this respect. BGA shall make the relevant current price list available to the customer on request.
Unless otherwise agreed in writing by the contracting parties, BGA shall charge its performance on a monthly basis.
If the Contractual Documents contain statements on the expected total expenditure, these are non-binding estimates which shall not affect BGA’s claim for payment of the full remuneration in accordance with subsection 1 above.
The remuneration is always subject to VAT. Invoices are payable within 30 days of their date of issue unless the contracting parties agree in writing on a different payment period.
Customer may only make a set-off against claims established by final judgment or undisputed by BGA. Except in the area of § 354a, German Commercial Code [HGB], the customer may only assign claims under the contract with the prior written consent of BGA. Customer has a right of retention or a plea of non-performance of the contract solely within the relevant contractual relationship.

§ 6 Acceptance

Customer shall examine the work results placed at its disposal (§ 10(1)) without undue delay (“Acceptance Test”). If the Acceptance Test confirms that the work results satisfy the agreed requirements, the customer shall declare acceptance to BGA in writing without undue delay.
Should defects arise during the Acceptance Test, Customer shall notify BGA accordingly in writing without undue delay. BGA shall rectify such defects. A new Acceptance Test shall be conducted without undue delay after rectification of the defect. Customer may not refuse acceptance on the basis of insignificant defects. Such defects will be rectified under the warranty.

§ 7 Briefing, Meetings and Minutes

BGA may take minutes on briefings and other meetings with the customer, and send such minutes to the customer. The minutes become binding unless the customer raises objections in writing within 5 working days of receipt, while making its own suggestion for the wording.
§ 8 Time of Performance, Delays, Place of Performance

Information on times of delivery and performance are non-binding unless they are designated as being binding by BGA in writing. BGA may provide partial performance if the parts supplied can be used meaningfully by the customer.
Delivery and performance deadlines shall be extended by the period in which the customer defaults on payment or fails to comply with a cooperation obligation in breach of contract. The same applies if BGA is prevented from providing performance due to force majeure.
If the contracting parties subsequently agree on other or additional performance which affects agreed set periods, such set periods shall be reasonably extended.
Reminders and deadlines stipulated by the customer have to be in writing in order to be valid. Deadlines have to be reasonable. A deadline of less than 2 weeks is only reasonable in case of particular urgency.
Place of performance is the registered office of BGA.

§ 9 Binding Force and Termination of Agreements

Each and every termination of the further exchange of performance (e.g. in case of withdrawal, reduction in price, termination for good cause, damages in lieu of performance) has to be announced with specification of the grounds and with reasonable notice for rectification (normally at least 2 weeks), and may only be announced within 2 weeks of expiry of a set period. Notice does not have to be given in those cases regulated by law (see § 323(2), German Civil Code [BGB]). A party which is wholly or predominantly responsible for the impairment may not require rescission of contracts.
All declarations in this connection have to be in writing in order to be valid.

§ 10 Rights to Performance Provided

The copyright, patent rights, trademark rights and all other related rights to presentations, texts, graphics, software and other machine-readable codes, data and other items and information provided or made available to the customer by BGA within the context of the contractual negotiations and performance (“Work Results”) accrue exclusively to BGA in relations between the contracting parties.
BGA grants the customer a non-exclusive right that is unlimited in geographical scope to use the Work Results itself, within its own enterprise for its own purposes. Work Results intended for operation on a web server may be installed and operated in accordance with their purpose by the customer on a web server operated by or on behalf of the customer.
All other acts of exploitation of Work Results, in particular the adaptation, rental, lending or dissemination thereof in tangible or intangible form, or their use by or for third parties, are not permitted without the prior written consent of BGA.
BGA may sign the Work Results in a manner customary in the branch of industry. Customer may not remove or modify signatures or other copyright notices.
The duration of the customer’s use rights is stipulated in § 17 hereof.

§ 11 Material Defects

Customer shall ensure all deliveries of goods and services provided by BGA to be inspected by a qualified staff member without undue delay upon delivery or making available, in accordance with the provisions of commercial law (§ 377, German Commercial Code [HGB]), and defects ascertained shall be notified in writing together with a precise description. Customer shall test all deliveries of goods and services in detail as to their practicability in the specific situation, before commencing with productive use.
In case of duly notified defects in the Work Results, BGA shall first attempt to rectify them. BGA is entitled to make at least two attempts at rectifying each defect. If these attempts fail definitely, the customer’s claims shall be based on the statutory provisions. Customer may not, however, rectify defects itself at the expense of BGA.
§ 9 hereof applies to the termination of the exchange of other performance, § 13 applies to claims for damages and compensation for futile expenditure. Claims become statute-barred according to § 14.
Customer shall support BGA according to § 4(5) in the inspection and rectification of defects.

§ 12 Defects in Title

BGA warrants that use of the Work Results is not prevented by rights accruing to third parties.
Customer shall notify BGA in writing without undue delay if third parties assert intellectual property rights (e.g. copyrights or patent rights) against it in relation to Work Results. Customer authorizes BGA to conduct the dispute against the third party on its own. As long as BGA avails itself of such authorization, the customer may not recognize claims of the third party without the written consent of BGA.
§ 9 hereof applies to the termination of the exchange of other performance, § 13 applies to claims for damages and compensation for futile expenditure. Claims become statute-barred according to § 14.

§ 13 Damages and Compensation for Futile Expenditure

BGA shall pay damages and compensation for futile expenditure, no matter on what legal grounds, exclusively as follows:
Full liability applies in case of intent, gross negligence and in case of a guarantee issued in writing by the management of BGA.
BGA is liable in the amount of typical damage foreseeable at the time of conclusion of the contract in case of a negligent breach of an obligation so material that achievement of the purpose of the contract is jeopardized (material obligation).
BGA may raise a plea of contributory fault. Customer is in particular under an obligation to back-up data and to avert viruses in accordance with the current state of the art.
In case of injury to life, limb or health and in case of claims under the German Product Liability Act [Produkthaftungsgesetz], the statutory provisions apply.

§ 14 Statute of Limitations

The statute of limitations is
one (1) year in case of material defects, but for claims for repayment of the remuneration due to withdrawal or a price reduction no less than three (3) months after the valid declaration or rescission or price reduction is made;
one (1) year for other claims based on material defects;
two (2) years in case of claims based on defects in title unless the defect in title lies in a third party’s right in rem on the basis of which the latter can demand that BGA surrender the Work Results;
two (2) years in case of other claims for damages or compensation for futile expenditure, commencing on the date when the customer became or in the absence of gross negligence should have become aware of the circumstances giving rise to the claim.
Claims become statute-barred no later than upon expiry of the maximum periods stipulated in § 199, German Civil Code [BGB].
However, the statutory periods of limitation apply in case of damages and compensation for futile expenditure based on intent, gross negligence, guarantee, fraudulent intent and in the cases mentioned in § 13(3) above.

§ 15 Confidentiality

The contracting parties undertake to treat confidentially also beyond the end of the contract all information which is protected by law or contains business or trade secrets or which is designated as being confidential, that is disclosed or provided to them by the other contracting party respectively within the context of the contractual negotiations or performance, unless such information is publicly known without a breach of the confidentiality obligation.
The contracting parties shall make confidential information available solely to those staff members or other third parties who require access to it in order to execute their official responsibilities. The contracting parties shall instruct such persons about the need to keep the information confidential.

§ 16 Data Protection

The contracting parties shall observe the provisions of data protection law. BGA shall impose a written obligation on persons working on its side to comply with data protection in accordance with § 5, second sentence, German Federal Data Protection Act [BDSG], and shall present corresponding proof to the customer on request.
Insofar as BGA processes personal data of the customer when providing performance, it is acting on the customer’s instruction in the sense of § 11, BDSG. Therefore, BGA shall only use such personal data within the context of the relevant contract or other written instructions of the customer and in accordance with the provisions of data protection law.

§ 17 Commencement and End of Customer’s Rights

Ownership of items delivered and the rights pursuant to § 10 hereof shall only pass to the customer upon payment in full of the remuneration (§ 5). Prior to this the customer only has a provisional right of use under the law on obligations which can be revoked according to subsection 2 below.
BGA may revoke the right pursuant to § 10 for good cause subject to the requirements of § 9. A good cause is given, in particular, if the customer fails to pay the remuneration or commits a significant breach of § 10 above.
If the right of use does not arise pursuant to § 10 or if it ends, BGA may require the customer to return the Work Results provided or to give a written assurance of their destruction, and may also demand the deletion or destruction of all copies and a corresponding written assurance.

§ 18 Ban on Enticement

Customer shall not entice BGA staff members away during the term of the cooperation between the contracting parties and for one (1) year after acceptance
(§ 6).
Customer shall pay a contractual penalty to be determined by BGA and verified as to its adequacy by the competent court in case of dispute, for each instance of a culpable breach of the prohibition set out in subsection 1 above.

§ 19 Reference Customer

BGA is entitled to call the customer a reference customer following acceptance (§ 6).
§ 20 Conciliation

In case of any differences of opinion arising under or in connection with the present Terms and Conditions or any supplements or additions thereto which they are unable to resolve themselves, the contracting parties agree to call on the conciliation office of the German Association of Law and Informatics [Deutsche Gesellschaft für Recht und Informatik e. V. - DGRI] ( in order to resolve the dispute fully or partially, provisionally or finally according to the DGRI conciliation rules in the version in force at the time the conciliation proceedings are initiated.
In order to enable the conciliation, the parties mutually waive the plea of the statute of limitations for all claims arising from the matter in dispute, from the date on which the conciliation request is filed until one month after completion of the conciliation proceedings. The waiver causes an interruption of the statute of limitations. § 203, German Civil Code [BGB], applies mutatis mutandis.

§ 21 Final Provisions

Amendments or supplements of contractual agreements have to be in writing in order to be valid. The requirement of written form may only be revoked in writing.
Insofar as declarations have to be made in writing according to these Terms and Conditions, e-mails and faxes also suffice unless otherwise agreed. This does not apply to declarations pursuant to § 8(4) and § 9(1).
The laws of the Federal Republic of Germany apply, to the exclusion of the UN CISG.
Place of performance and place of jurisdiction for all disputes arising under and in connection with the contractual agreements of the contracting parties is the registered office of BGA.